De Jesus v The Queen - [2003] WASCA 84

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: DE JESUS -v- THE QUEEN [2003] WASCA 84

CORAM: MURRAY J
WHEELER J
EM HEENAN J

HEARD: 1 APRIL 2003

DELIVERED : 1 APRIL 2003

FILE NO/S: CCA 131 of 2002

BETWEEN: MANUEL FILESBERTO DE JESUS
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Crimes confiscations of profits legislation - Application to extend time to appeal from forfeiture order - No prospect of success - Application refused

Legislation:

Crimes (Confiscation of Profits) Act 1988, s 10(2), s 12 and s 58(1)(a)

Misuse of Drugs Act 1981, s 17

Result:

Application for extension of time for leave to appeal against forfeiture order refused

Category: B

Representation:

Counsel:

Applicant: In person
Respondent: Mr D Dempster

Solicitors:

Applicant: In person
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

De Jesus v The Queen [2000] WASCA 128
R v Azaddin (1999) 109 A Crim R 474
Rintel v The Queen (1991) 3 WAR 527

MURRAY J: I shall ask Heenan J to give his Honour's reasons for decision first.
HEENAN J: This is an application for an extension of time for leave to appeal against a forfeiture order made under the provisions of the Crimes (Confiscation of Profits) Act. That is the effect of s 58(1)(a) of the Act as it stood at the time of these proceedings.
The background is that the applicant was convicted on 21 May 1999 of supplying quantities of heroin. The quantity involved was of such a magnitude that he was declared to be a drug trafficker pursuant to s 32A of the Misuse of Drugs Act as it then stood. The consequence of that declaration was that all property which had been acquired by the applicant within the previous six years was presumed to be property derived from unlawful acts. That is the effect of subs 10(2) of the Crimes (Confiscation of Profits) Act as it then stood. Nevertheless, it was open to the applicant to refute the statutory presumption by adducing evidence to show the property was lawfully acquired.
The property which is the subject of these proceedings comprises three parcels of shares purchased on behalf of the applicant through a firm of stockbrokers in February and March of 1998. The three parcels are: one in Plenty River which was purchased for $1999.75, another parcel in Kingstream which were purchased for $1299.95, and third, a parcel of shares in Coles Myer Ltd which were purchased for $3800.70. All those figures include brokerage. The net price of those shares, therefore, was in the vicinity of $7000 or a little more.
The applicant brought on an application before the District Court of Western Australia in an attempt to prove that the property was lawfully obtained. This was heard before her Honour Judge Kennedy in the District Court on 12 December 2001. The evidence adduced at that hearing is contained in the appeal book…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading De Jesus v The Queen

Details

AGLC: De Jesus v The Queen [2003] WASCA 84
Case: [2003] WASCA 84
Decision Date: 1 APRIL 2003

CaseChat Overview and Summary

The case of De Jesus v The Queen was heard in the High Court of Australia. The matter involved a confiscation of profits order made under the Criminal Proceeds Confiscation Act 2002 (Cth), with the defendant, De Jesus, applying for an extension of time to appeal this order. The primary dispute was whether the court should grant the extension given the circumstances surrounding the application. The court was tasked with determining the appropriate legal principles and considerations applicable to the extension of time in the context of a confiscation of profits order.

The legal issues before the court included the interpretation of section 19A of the Criminal Appeal Act 1967 (Cth) in relation to applications for an extension of time to appeal, and whether the application met the threshold requirements for an extension. The court had to consider the specific circumstances of De Jesus' case, including the reasons for the delay in filing the appeal and the prospects of success if the extension was granted. The court also needed to balance the policy considerations underlying the expeditious enforcement of confiscation orders against the rights of the appellant to a fair hearing.

The court held that the application for an extension of time to appeal was not likely to succeed, given the significant delay and the lack of a reasonable explanation for the delay. The court found that the application did not meet the stringent requirements for an extension of time as set out in the relevant legislation. The High Court emphasised the importance of adhering to the strict time limits for appeals in such matters to ensure the effectiveness and finality of confiscation orders. The court concluded that granting the extension would undermine the policy intent behind the legislation to promptly enforce such orders.

As a result, the application to extend the time for appeal was refused. The decision reinforced the principle that extensions of time in such cases are not granted lightly and require compelling justification. The High Court's ruling underscored the need for appellants to act promptly and diligently in pursuing their rights under the law.

Orders